Over the past year, EmployNews has reported a growing series of decisions by the National Labor Relations Board calling into question the use of common employee handbook policies by non-unionized employers. These decisions have characterized employee non-disclosure, non-disparagement, social media and similar policies as illegal because they could have a negative impact on employees’ legal rights to engage in concerted activity to complain about the terms and conditions of employment.
Many employers reacted to these decisions by adding general disclaimers to their handbooks stating that the polices are not intended and will not be used to interfere with employees’ rights under labor laws. However, a new NLRB decision calls into question the effectiveness of these disclaimers in avoiding conclusions that the policies still interfere with concerted activity rights.
First Transit, Inc. involved a union’s challenge to a number of handbook provisions, including a personal conduct policy that prohibited discourteous behavior in the workplace. The handbook also contained a general disclaimer stating that the company will observe employees’ rights to choose union representation without management interference. The employer contended that this policy explained that the handbook provisions would not be used to violate employees’ rights under federal labor laws.
A three-member panel of the NLRB rejected this contention, concluding that the handbook policies violated Sections 7 and 8(a)(1) of the NLRA by potentially chilling employee rights to engage in concerted activity. While agreeing that handbook disclaimers can sometimes mitigate the effects of otherwise overbroad policies, the NLRB rejected the specific language used by the employer in this case. First, it only applies to organizing rights and not employees’ broader entitlement to engage in concerted activity. Second, the disclaimer was not proximate to the challenged policies, but rather was set forth in a separate section of the handbook.
The second part of this decision may prove the most troubling for employers. If an effective disclaimer must accompany each individual policy that may be challenged on Section 8(a)(1) grounds, employers may overreact by repeating the disclaimer for a wide range of policies that could potentially be challenged. Regardless, handbooks should be periodically reviewed in light of these developing decisions to try to minimize the chances of an unfair labor practice charge.